13 Mont. 136 | Mont. | 1893
Lead Opinion
When the statute provides that the school trustees shall have power to remove “schoolhouses” only when directed by a vote of the district so to do, we are of opinion that the term “schoolhouse” does not mean simply the house, but refers rather to the school plant, including the general equipment, furniture, maps, charts, globes, and pupils and teacher. The rural school districts are large geographically, and small in population. The school should naturally be located to best serve the greatest number. Its location can in no way be so satisfactorily determined as by a vote of the electors of the district. - Such determination is in accordance with the American principle of majority rule. We take it that it rarely, if ever; occurs that a schoolhouse is moved. In cities the schoolhouses are elaborate structures, the moving of which is wholly impracticable. In the country they are rude buildings, and are likely to be not worth the moving: We doubt that a schoolhouse, as a building, was ever moved in this state. We can scarcely conceive of circumstances where it would be practicable to move the house. On the other hand, changes in the centers of population frequently occur in rapidly developing communities. When they occur, the trustees are likely to be elected from such new center. The people of such new center are likely to want the school near to them. But the trustees must not change the place of the school without the vote of the district. At such election all elements express themselves. Matters of convenience to the majority, questions of expense to .the district, suitability of site, and scores of opinions and influences which sway a rural school district, are sifted down through the ballots, and the result demonstrates the will of the people as to the site of their school. This, in our opinion, was within the view of the legislature, and they meant to express their intent (section 1885, subd. 6) that the people should determine the site of their school. This is a more reasonable view than to hold that the statute means to say only that a vote shall be had upon the question of moving the house. The house is the shell— the envelope. The substance is the school itself, and it is that,
At the next hearing of the case in the court the trustees exhibited the election returns, and the result thereof, in a supplemental answer. They presented them as a reason why the mandamus should not issue. In form, this election was an approval and ratification of the act of the trustees in moving the school to the new place. In this matter of form the election was not wholly regular; but we think that it may be reasonably held that the result obtained was an expression of the will of the people that the school should be at the new place. It is the same result that would have been reached if thé court had, by mandamus, required the trustees to move the school back to the old place, and then an election had been held, and it was decided to move to the new site. By regarding the election which was held as practically an election authorizing the trustees to move the school there is saved the twice moving of the school. We are of opinion that this view
Reversed.
Concurrence Opinion
(concurring). — The real question for determination in this case is whether the supplemental answer of appellants sets forth facts sufficient to constitute a defense to this proceeding for mandamus to compel said trustees to remove the school from its present location back to the schoolhouse formerly occupied; for, if the facts alleged in the supplemental answer constitute a defense, the demurrer thereto admits the truth of those allegations, leaving simply a question of law for determination (section 575, Code Civ. Proc.), and judgment should be entered accordingly. The first change of place of the schoolhouse for said school ■district, without submission of that question to the electors- of the district, as provided in the sixth subdivision, •section 1885, of the fifth division of the Compiled Statutes, was irregular, and appears to have been so regarded by the
Under such a state of facts, I doubt that it could be maintained that the law enjoins upon the present board of trustees the duty of removing said school back to the former site, and to a schoolhouse abandoned three years since, without submitting the question of removal to the proper electors. If the present board of trustees were not under such duty, then this proceeding will not lie for the purpose sought to be attained. (Code Civ. Proc., § 566.)
The court below, however, in the first stage of the proceedings, was of opinion that the question of the change of the location of said school from its former to its present site should, under the circumstances, be submitted to the electors of said district; and whether the action of the court upon this point be regarded as an order that such election be held, or as a suggestion of the propriety of settling the controversy by such election, to be held under the provisions of the school law, the fact appears by the supplemental answer that such order or suggestion was voluntarily acquiesced in, and such election held pursuant to the provisions of the school law, whereat, as appears, the supporters of each side of the controversy engaged their utmost endeavors to prevail, and the result was a ratification of the former action of the trustees. It is a familiar principle of law that although an agent, in doing an act for the principal, departs from or exceeds his authority, such action may be ratified by the principal. The electors of said district having, by their vote, not only ratified the former moving of said school, but in effect declared their will to be that the school remain where now located, it cures the former irregularity, as far as it can be cured; But, leaving the question of ratification